As you may recall from this prior post, some parents in Kentucky are challenging the legality of the Department of Education’s regulations that allow schools to offer single-sex education. The parents (represented by the ACLU) sued the Breckinridge County Board of Education, which it alleges has violated Title IX and the Equal Protection Clause by offering sex-segregated middle school math and science classes that provide substantially unequal instruction to girls and boys. They have also sued the Department of Education itself for promulgating the regulations on which the school district relies.
Recently, however, the federal court in Kentucky ruled that the Department of Education is not a proper defendant to this lawsuit, and that the plaintiffs can only proceed against the school district itself.
The court first concluded that the plaintiffs cannot rely on Title IX as the basis for a claim against the Department of Education because the statute’s private right of action only applies to private defendants, not the government. The court notes that unlike the private right of action against educational institutions, which is implied, the right of action against the Department of Education to challenge its regulations is expressly provided in the statute itself. And the statute expressly limits judicial review to situtions where relief “may otherwise be provided by law for similar action taken by such department or agency on other grounds.” The court interprets this as a requirement that plaintiffs “look to another avenue for review of DOE’s regulations under Title IX.”
Accordingly, the court then proceded to examine the plaintiffs’ claims that the agency’s regulations also violate the Administrative Procedure Act claim — under which courts can invalidate regulations that are “arbitrary and capricious” and violate statute and constitutional law. The court determined that this alternative grounds for review was also unavailable to the plaintiffs. In particular, the court reasoned, it is foreclosed by the availability of “other adequate remed[ies] in court” — an exception contained in section 704 of the APA (which authorizes judicial review of “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court”). Applying this exception, the court reasoned that the plaintiff’s claims against the school district provides an “adequate remedy” because those claims also test the legality of the regulations themselves. It is the school district’s decision to impose sex-segregated classroom, rather than “the mere existence” of the Department’s regulation itself that causes the plaintiffs a “cognizable injury” that can be challenged in court. Thus, under 704, the plaintiffs must seek relief only against the school district rather than the school district and the agency together.
A number of things puzzle me about this decision. First, I doubt the Department of Education is going to leave the defense of its regulations up to the school district, so won’t it still want to participate in the litigation (as in intervenor, for example)? That being the case, why did it work so hard to get the court to dismiss the claims against it? Second, I note that the court does not acknowledge and attempt to distinguish other cases like this one in which Title IX’s implied right of action was interpreted to apply to suits against the agency as well. If the ACLU challenges this decision, will the appellate court be similarly dismissive of plaintiff’s Title IX claims? Third, what happens to the plaintiff’s argument that the regulations are arbitrary and capricious in violation of the APA? This is not an argument that the plaintiffs can raise against the school district, so how can there be an “adequate remedy” for it in the plaintiff’s remaining claims? Another issue about which I am curious in the event of an appeal.
Decision: A.N.A. v. Breckinridge County Bd. of Educ., 2009 WL 899441 (Mar. 30, 2009).